Hoosier Energy is a public electric utility organized and operating as a general
district corporation under Indianas Rural Electric Membership Corporation Act (the Act). See
Ind. Code Ann. § 8-1-13-1 et seq. (West 2004). As a general
district corporation, Hoosier Energy furnishes utility services to the local district corporations, which
in turn provide utility services to the ultimate consumers. See Ind. Code
Ann. § 8-1-13-23 (West 2004). In this case, Hoosier Energy operates the
generating plants and transmission lines for the system of which it is a
part.
Hoosier Energy is owned by sixteen local rural electric membership corporations (the REMCs).
Each of these sixteen REMCs is also a public utility company, operates
as a local district corporation under the Act, has a representative sitting on
Hoosier Energys Board of Directors, and is a Petitioner to this case.
As local district corporations, each of the REMCs owns and operates its own
distribution lines for delivery of the electricity to the ultimate consumer. Consequently,
each of the REMCs has a separate agreement with Hoosier Energy for the
purchase of its electricity.
See footnote
In March of 1999, the Petitioners sought the State Boards permission to file
a consolidated property tax return. The State Board, in exercising its discretion
under Indianas Administrative Code, did not respond to this request. See Ind.
Admin. Code tit. 50, r. 4.2-1-6 (1996). Consequently, each of the Petitioners
filed individual returns for the 1999 assessment year. Nevertheless, each of the
Petitioners filed with their individual returns a schedule indicating the property value of
the entire group as calculated on a consolidated basis.
In May of 1999, the State Board issued its tentative assessments on each
of the Petitioners properties. Each of the Petitioners timely filed objections thereto.
Consequently, the State Board conducted an administrative hearing on the objections on
June 2, 1999. On June 30, 1999, the State Board issued a
final determination ordering that the tentative assessments be made final, and denying the
Petitioners request to file a consolidated return. The Petitioners subsequently initiated an
original tax appeal on July 16, 1999.
For the 2000 assessment, each of the Petitioners again attached a schedule computing
the value of the Petitioners property on a consolidated basis with their individual
returns. The State Board subsequently issued tentative assessments on each of the
Petitioners properties. Each of the Petitioners timely filed objections thereto. The
State Board conducted an administrative hearing on the Petitioners objections on June 13,
2000. On June 29, 2000, the State Board issued its final determination
ordering that the tentative assessments be made final, and denying the Petitioners request
to file a consolidated return. The Petitioners subsequently initiated an original tax
appeal on July 14, 2000.
On September 25, 2000, upon the Petitioners motion, this Court consolidated the Petitioners
1999 and 2000 appeals. This Court conducted a trial on May 25,
2001, and heard the parties oral arguments on November 16, 2001. Additional
facts will be supplied as necessary.

STANDARD OF REVIEW

When this Court reviews a State Board assessment of public utility property, its
standard of review is set by statute:
When a public utility company initiates an appeal under section 30 [of Indiana
Code § 6-1.1-8], the tax court may set aside the state board of
tax commissioners final assessment . . . if:

(1) the company shows that the boards final assessment, or the boards apportionment
and distribution of the final assessment, is clearly incorrect because the board violated
the law or committed fraud; or

(2) the company shows that the boards final assessment is not supported by
substantial evidence.

The issue in this case is whether the State Board erred in not
allowing the Petitioners to file consolidated returns for the years at issue.
As the Petitioners explain, by filing a consolidated return, they would have been
able to take advantage of additional depreciation, thereby reducing their overall assessment.
For example, for the 1999 tax year, the State Board found that the
assessed value of the Petitioners distributable property, combined, was $122,183,414; however, if the
Petitioners would have been able to file a consolidated return, they claim that
the assessed value of their distributable property would have only been $101,295,226.
(See Petrs Ex. 5.)
See footnote
To support their argument that they are entitled
to file consolidated returns, the Petitioners state that three investor-owned electric utilities (IOUs)
have been permitted to file consolidated returns.
See footnote
(See Petrs Br. at 15
(footnote added).) Thus, the Petitioners merely want equal treatment. (Petrs Br.
at 15.) To the extent that they are not receiving equal treatment,
the Petitioners claim the State Board has violated Article 10, § 1 of
the Indiana Constitution, which provides that
[t]he General Assembly shall provide, by law, for a uniform and equal rate
of property assessment and taxation and shall prescribe regulations to secure a just
valuation for taxation of all property, both real and personal.

Ind. Const. art. X, § 1(a).
See footnote
The State Board, on the other hand, argues that the Petitioners are not
entitled to file consolidated returns because they have not proven that they are
similarly situated to the IOUs that filed the consolidated returns. (See Respt
Br. at 14.) More specifically, the State Board asserts that unlike the
IOUs, the Petitioners do not share a single parent company; rather they are
all separate legal entities. (See, e.g., J. Ex. 2 at 5-8; J.
Ex. 3 at 10-12; J. Ex. 5 at 7-8.) Thus, the Petitioners
have not proven that the substance of the organizational structure of Hoosier Energy
and . . . each individual REMC[] is equivalent to that of investor
owned utilities that have one parent company. (See, e.g., J. Ex. 2
at 8; J. Ex. 3 at 12; J. Ex. 5 at 8.)
In turn, the State Board complains that the Petitioners are merely attempting an
improper end-run around the regulation [Indiana Administrative Code title 50, rule 5.1-6-9] limiting
depreciation. (Respt Br. at 20 (citation omitted).)
While the Court ultimately agrees with the State Board in result, it does
not agree with its reasoning. Indeed, both parties have spent a great
deal of time and paper arguing about how the Petitioners organizational structure should
affect their assessment, but they have skirted the real issue in this case:
whether a public utility company may file a consolidated return in the
first place.
Public utilities are subject to the centralized assessment scheme contained within Indiana Code
§ 6-1.1-8. Consequently, public utility companies do not file property tax returns
in the traditional sense. Rather, during the years at issue, they filed
statements of value with both the State Board and the appropriate local assessing
authorities. See Ind. Code Ann. § 6-1.1-8-19 (West 1999) (amended 2002); Ind.
Code Ann. § 6-1.1-8-23 (West 1999) (amended 2002). After these statements were
filed, the appropriate township assessors determined the assessed value of each public utilitys
fixed property, while the State Board determined the assessed value of the public
utlilitys distributable property. See Ind. Code Ann. § 6-1.1-8-24 (West 1999) (amended
2002); Ind. Code Ann. § 6-1.1-8-9 (West 2004); Ind. Code Ann. § 6-1.1-8-25
(West 1999) (amended 2002); A.I.C. § 6-1.1-8-9(b). Then, on or before June
1st of each year, the State Board issued a tentative valuation of each
public utilitys overall property. See Ind. Code Ann. § 6-1.1-8-26, -28 (West
1999) (amended 2002).
Indiana Code § 6-1.1-8 is completely silent with respect to the filing of
consolidated returns by public utilities, as are the administrative regulations applicable to public
utility assessment. See Ind. Admin. Code tit. 50, r. 5.1-6 (1996).
This Court has often said that what a statute or regulation does not
say is just as important as what it does say. See LeSea
Broad. Corp. v. State Bd. of Tax Commrs, 525 N.E.2d 637, 639 (Ind.
Tax Ct. 1988). See also Western Select Prop. v. State Bd. of
Tax Commrs, 639 N.E.2d 1068, 1073 (Ind. Tax Ct. 1994) (stating that rules
of statutory construction also apply to administrative rules and regulations). This leads
the Court to the conclusion that the statutes and regulations relating to public
utility assessment were drafted with the intent that public utilities cannot file consolidated
returns.
See footnote
As mentioned earlier, the Petitioners entire argument is based on the
fact that because three other public utilities were allowed to file consolidated returns,
the Petitioners, likewise, are entitled to such a filing. The fact that
those other public utilities filed consolidated returns, however, will be of no consequence
to the treatment the Petitioners seek. Indeed, there is no sound reason
to give the Petitioners the benefit of the State Boards misinterpretation and misapplication
of the law simply because someone else may have previously benefited from the
same mistake; to do so would only exacerbate the inequity for everyone else.

CONCLUSION

For the foregoing reasons, this Court hereby AFFIRMS the State Boards final determinations
in this case.

Footnote: The State Board of Tax Commissioners (State Board) was originally the
Respondent in this appeal. However, the legislature abolished the State Board as
of December 31, 2001. 2001 Ind. Acts 198 § 119(b)(2). Effective
January 1, 2002, the legislature created the Department of Local Government Finance (DLGF),
see Indiana Code § 6-1.1-30-1.1 (West Supp. 2004)(eff. 1-1-02); 2001 Ind. Acts 198
§ 66, and the Indiana Board of Tax Review (Indiana Board). Ind.
Code Ann. § 6-1.5-1-3 (West Supp. 2004)(eff. 1-1-02); 2001 Ind. Acts 198 §
95. Pursuant to Indiana Code § 6-1.5-5-8, the DLGF is substituted for
the State Board in appeals from final determinations of the State Board that
were issued before January 1, 2002. Ind. Code Ann. § 6-1.5-5-8 (West
Supp. 2004)(eff. 1-1-02); 2001 Ind. Acts 198 § 95. Nevertheless, the law
in effect prior to January 1, 2002 applies to these appeals. A.I.C.
§ 6-1.5-5-8. See also 2001 Ind. Acts 198 § 117. Although
the DLGF has been substituted as the Respondent, this Court will still reference
the State Board throughout this opinion.

Footnote: In addition, each REMC has a separate contract with Hoosier Energy
for the provision of some centralized services, including marketing and business development, finance
and strategic planning services, and environmental services. (
See J. Ex. 1 at
3.) Footnote: Generally, the assessed value of a public utilitys depreciable tangible personal
property is computed based upon the original basis of each asset for federal
depreciation purposes, less the accumulated depreciation relative to that asset. To the
extent that the aggregate net value of all of the distributable tangible personal
property of a utility company is less than 30% of the original basis,
the deduction of accumulated depreciation is disallowed.
See Ind. Admin. Code
tit. 50, r. 5.1-6-9 (1996).
By filing a consolidated return, the Petitioners would have been able to apply
the 30% floor to all of the Petitioners distributable property, as opposed to
only a portion of each Petitioners property. The reason th[is] happens is
because Hoosier[ Energys] power plants and transmission lines are depreciated well below the
30% floor. The other Petitioners distribution lines, if separately assessed, are still
above the floor. If combined, all the system property would be below
the floor, and the assessment would therefore be raised to the 30% floor,
which is well below the assessment made by the State Board in both
1999 and 2000. (Petrs Br. at 17.) Footnote: Each of the three IOUs consists of a holding company and
its wholly-owned subsidiaries. (
See J. Ex. 1 at 13.)

Footnote: In other words, the Petitioners assert that the State Board is
simply unable and unwilling to articulate . . . why or how the
difference in Petitioners organizational structure from that of an [IOU] can justify assessing
exactly the same type of property in a different and discriminatory manner.
(Petrs Reply Br. at 3.)

Footnote: The body of statutory law that pertains to the assessment of
personal property in general does allow for the filing of consolidated returns.
See Ind. Code Ann. § 6-1.1-3-7(d) (West Supp. 2004) (stating that a taxpayer
may file a consolidated return with the county assessor if the taxpayer has
personal property subject to assessment in more than one (1) township in a
county and the total assessed value of the personal property in the county
is less than one million five hundred thousand dollars ($1,500,000)). Nevertheless, this
statute has no applicability to public utility assessments. Indeed, Indiana Code §
6-1.1-8-43 expressly provides that:

[Indiana Code § 6-1.1-8] is designed to provide special rules for the assessment
and taxation of public utility company property. If a provision of [chapter
8] conflicts with any provision of another chapter of [article 1.1], the provision
of this chapter controls with respect to the assessment and taxation of public
utility company property.